The controversy that has erupted around former NSW Justice Jeff Shaw is a rare example of a judge coming under scrutiny outside the courtroom. Unfortunately, there is even less scrutiny of how judges are appointed. The power to appoint all the way up to the High Court is left solely in the hands of the government of the day. In this, Australia clings to tradition despite changes around the world.
Under the Australian Constitution and those of the States, judges are appointed by the Queen or her representative. In practice, the actual decision is made by cabinet or even by the Prime Minister or Premier. There is no community consultation, no selection criteria and no transparency.
This creates all sorts of problems. While governments often state that they have selected someone on the basis of “merit”, this is not always the sole criterion. Other considerations range from politics to personal friendships. Hence, when a former politician like Jeff Shaw is chosen to become a judge, people may view it as an example of “jobs for the boys”. This is a fair assessment in some cases, wrong in others. In the case of Shaw, his background as a leading barrister before he became a politician would, by itself, have qualified him for judicial office.
The many problems with how judges are selected have been tackled in other nations. Indeed, Australia lags behind a long list of countries that have sought reform to reduce the opportunity for political patronage and to increase public confidence in the judiciary. Based upon the approach in these nations, Australia has three main options.
The first is to elect judges, just as we elect our politicians. Popular elections are currently held in 21 states in the US, but not in any other comparable nation. The idea has some popular appeal given that judges make decisions about the law for the community. However, choosing judges in this way can undermine what we want from them. Judges should be independent and non-partisan. They must do justice according to the law and not according to who has voted them in.
Second, governments could nominate someone to be a judge with that person to be confirmed by a vote of parliament. Confirmation hearings are held for judges in the US federal courts. This would allow for public scrutiny and could place a democratic check on government. However, it could still lead to political appointments, as the United States has shown with heated confirmation battles over appointments to the US Supreme Court. Given Australia’s rigid party system, it could also increase partisanship in judicial selection.
The third option is to create a judicial appointments commission to assist the government. Commissions have been adopted, or are now being considered, in some parts of the US and in Canada, New Zealand, South Africa, Israel and the UK. Research shows that judicial appointment commissions are a better method of choosing judges than the current Australian system. They are fairer, produce judges of high quality, can result in greater diversity of appointments and can improve public confidence in the judicial system.
Australia has the advantage that it can create its own judicial appointments commission by adapting what has worked in other nations. Based on this experience, the body should be chosen by a process that is at arm's length from government. The commission should include men and women from legal and non-legal backgrounds. Some lawyers would argue against non-lawyers serving on such a body, but lawyers should not have a monopoly on who becomes a judge and judges should be chosen to reflect the fact that they ultimately serve the people.
The judicial appointments commission would be activated for each appointment and should consult widely and even consider interviewing candidates in preparing a short list of names. Those on the short list would be chosen according to clearly defined criteria for their legal skills and other professional and personal qualities. In almost all cases, the government would be expected to appoint a person from the short list. It could appoint someone else only if it discloses this in a public statement to parliament.
Nations around the world have changed how they appoint judges. In Australia, the choice should no longer be made only by governments. The best option for reform is to create an independent judicial appointments commission to assist in making this choice. A commission could increase public confidence in the courts and also mean that, when a former politician such as Jeff Shaw is appointed, people are not left wondering whether it was part of a political deal.
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